Execution seems to some an effective measure to make society safer because it prevents recidivism by serious offenders, but a lawyer, who wished to only be identified by his surname, Huang, said it is “absurd” to argue for the retention of the death penalty for that reason.
It is absurd to have criminals killed by the state for any crime because it is tantamount to letting the state “take lives of its citizens to make up for what it is duty-bound, but has failed, to deliver,” Huang said.
Huang said he is leaning toward taking a position against the death penalty because Judge Regis de Jorna of the Paris Court of Assises has enlightened him about whether the sentence is an effective deterrent against crime.
Photo: Wang Min-wei, Taipei Times
He had attended a forum entitled “Why the EU moved away from the Death Penalty” in Taipei on Oct. 15, where De Jorna made his point by drawing on a speech that then-French justice minister Robert Badinter delivered to the National Assembly on Sept. 17, 1981, when he submitted a bill to abolish capital punishment.
“Those who believe in the dissuasive value of capital punishment are unaware of human truth,” Badinter was quoted as saying by De Jorna, who spoke in French. “Criminal passions cannot be held back by the fear of death. If the fear of death could stop crimes, we would have no great soldiers, no great sportsmen. We admire them because they don’t hesitate when confronted by death.”
“Only to justify capital punishment did one invent the idea that fear of death would stop men from their extreme passions and this is not correct,” Huang quoted Badinter in an interview with the Taipei Times on Oct. 22.
Huang agrees that the death penalty has no dissuasive value against lethal crimes.
“At the time of murderous impulse, the evocation of the punishment, whether the death penalty or not, does not exist in the mind of the murderer. In a case of premeditated homicide, the murderer has either planned an escape or is resigned to death,” Huang said. “I barely see a correlation between the death penalty and murder rates.”
The failure of the death penalty as a deterrent was also highlighted by Judge Christian Schmitz-Justen of the Cologne Higher Regional Court at the forum, when he said that the probability of becoming a crime victim is 10 times higher in a country such as the US, where the death penalty is a legal sentence, compared with most places in Europe, where the sentence is forbidden.
Academia Sinica assistant research professor at the Institutum Iurisprudentiae Jimmy Hsu (許家馨) expressed a different view at the forum, arguing in favor of retaining the death penalty and restricting its use to “extravagant evildoers.”
The death penalty should be reserved for “the worst of the worst” crimes because, for him, “what is placed on the scales of justice and being weighed is not the cruel principle of ‘life for a life’ or ‘eye for an eye,’” Hsu said.
Hsu considers the death penalty a “communicative retribution” in response to the message sent by extreme levels of crime, that it is in complete contravention of what humanity stands for.
“The only proper measure to counter the message is the death penalty,” Hsu said. “By using the death penalty we send the murderer and society a message: What you did is completely beyond the bounds of what humanity stands for. What you did only shows that you have stamped out the gift of life, with which all humanity shares a bond.”
“You have completely degraded what has been given to you — life as a human being. Now for what you did, you no longer deserve to retain it,” Hsu added.
The death sentence remains one of the most controversial issues in criminal justice, with the primary resistance to its abolition being connected to strong emotional feelings that often drown out rational arguments.
Following the four executions in May 2010 that ended a four-year de facto moratorium in Taiwan, the EU initiated the “EU-Taiwan Judicial Exchange Program” the next year to encourage constructive dialogue within Taiwan and between the EU and Taiwan on the various dimensions to the issue of using the death penalty.
EU Representative to Taiwan Frederic Laplanche said that the program offers a valuable platform for exchange and “we hope that this event will become a permanent feature on Taiwan’s judicial calendar and contribute to keeping Taiwan in tune with the international trend on the issues of human rights.”
During this year’s program, along with De Jorna and Schmitz-Justen, Judge Peer Lorenzen of the European Court of Human Rights and the Danish Supreme Court, and Judge Leeona Dorrian of the Supreme Court of Scotland attended a series of seminars for discussions with local judges, legal academics, lawyers and psychiatric assessment experts on issues related to sentencing for serious crimes and trials of defendants who are suffering from mental disorders, in addition to the forum.
Sun Kian-ti (孫健智), a judge at the Taoyuan District Court who participated in one of the seminars, said the major difference between Taiwan and countries in Europe with regard to ideology behind crime policy is that “Taiwan tends to use criminal punishment as a main crime prevention device, while European countries attach more importance to rehabilitative measures to prevent relapse.”
Citing probation as an example, Sun said that in Taiwan the period for which a probationer is placed under supervision expires upon completion of their sentence; while in Europe, if judicial officials determine that a probationer still poses a danger to the public at the time when the sentence is served, the probationer remains under supervision.
“Unlike the situation in Taiwan, rehabilitative measures [in Europe] are independent of the sentence,” he added.
If Taiwan had similar crime-prevention mechanisms, it would help the public to reconsider whether there is no guarantee against recidivism other than putting serious criminals to death, Sun said.
Nevertheless, it is impossible to sway opinion if people’s attitude toward the death penalty is based primarily on emotion, he added.
Emotions drive people to the view that there are criminals who are so “atrocious” that they cannot expiate their sins unless they pay with their lives, to the extent that they do not care about the problems associated with using the death penalty, even irreversible miscarriage of justice, Sun said.
It is impossible to reason with people for whom the life of a criminal in jail is more unbearable than the fear the criminal might repeat a crime, Sun said.
That a death penalty is irreversible in nature is one of the main arguments against capital punishment.
Badinter said in the speech: “Justice remains human, therefore fallible.”
Taiwanese anti-abolitionists have termed these as “external forces” aiming to transplant their values in Taiwan, but Sun disagreed, saying that the anti-death-penalty campaign in Taiwan actually arose indigenously and fits the needs of the nation’s situation.
“It’s a generally accepted fact that there is widespread distrust of the judiciary in Taiwan. Due to various political and historical reasons, the judicial system has been scarred by the authoritarian regime. Given that, it would be a question worth asking: ‘How can we be certain of judicial infallibility?’” Sun said.
A lawyer surnamed Hung said that the biggest obstacle those advocating abolishing the death penalty in Taiwan face lies in whether they take into account the emotions that contribute to support for retaining the death penalty — fear, anger, retribution, justice or distaste — when formulating persuasive discourse.
Those are all understandable emotions, Hung said.
As Schmitz-Justen said at the forum, in response to a question from the audience seeking his suggestions for steps to take to become a country that abolishes the death penalty: “You have to find your own way.”
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